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Constitutional Law Flashcards

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1
Q

Eleventh Amendment

A

Prohibits citizens of one state from suing another state in federal court for money damages and equitable relief

Bars suits in federal court against state officials for violating state law

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2
Q

Adequate and independent state grounds

A

Supreme Court cannot review a state court judgment if it rested on AISG (i.e., did not turn on federal grounds)

  • Adequate = state law controls
  • Independent = state law does not depend on an interpretation of federal law
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3
Q

Standing

A

Injury + causation + redressability

  • Injury – concrete, not necessarily economic
  • Causation – D’s act must have caused or will cause the injury
  • Redressability – court can remedy injury
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4
Q

Government allocations – standing to challenge

A

Federal taxpayers have no standing to challenge government allocations
- Exception – challenge to government expenditures as violating the Establishment Clause

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5
Q

Timeliness

A

Ripeness + mootness

  • Ripeness – concerns prematurity of case; must show actual or immediate threat of harm
  • Mootness – dismissed when no longer live controversy
    a. Exception – cases capable of repetition yet evading review
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6
Q

Political questions

A

Non-justiciable question; court will not decide because there are no manageable standards for judicial decision-making

  • Guaranty Clause
  • Foreign affairs
  • Impeachment procedures
  • Political gerrymandering
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7
Q

Commerce Power

A

Almost anything can be regulated as interstate commerce

  • Can regulate the channels and instrumentalities
  • Intrastate activity that has a substantial effect on interstate commerce
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8
Q

Taxing Clause

A

Tax must be rationally related to raising revenue

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9
Q

Spending Power

A

Includes spending for general welfare
- Can use to accomplish things it could not under the Commerce Clause (e.g., federal funds conditional on raising the drinking age)

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10
Q

Anti-commandeering

A

Congress cannot force states to adopt or enforce regulatory programs and cannot commandeer state and local officials to carry them out

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11
Q

Congress’s power over aliens and citizenship

A

Plenary power – subject to DP Clause

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12
Q

Thirteenth Amendment

A

Congress has broad power to legislate against racial discrimination, whether public or private

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13
Q

Fourteenth Amendment

A

Congress has the power to remedy violations of individual rights by government, but only as those rights have been defined by the courts
- Need congruence and proportionality (i.e., reasonable fit between remedial law and constitutional right)

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14
Q

Fifteenth Amendment

A

Congress has the power to ensure no racial discrimination in voting

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15
Q

President’s domestic powers

A

Generally subject to control by statute

Exceptions

  1. Pardon power (for all federal offenses)
  2. Veto power – 10 days; no line-item veto
  3. Appointment and removal of executive officers
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16
Q

Impeachment

A
  • Applies to executive officers
  • Accusation of high crimes and misdemeanors requiring majority vote of House
  • Trial in Senate; conviction requires two-thirds vote
  • Remedy is removal from office
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17
Q

Impoundment

A

If state gives President discretion to spend or withhold funds, he may do so, but when a statute requires funds to be spent, President cannot refuse to do so

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18
Q

Legislative veto

A

Congress cannot pass law reserving to itself the right to disapprove future executive actions by simple resolution

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19
Q

Delegation of powers

A

Congress can delegate its power to administrative agencies so long as there are intelligible standards governing the exercise of delegated power

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20
Q

Immunities –president

A
  • Absolute immunity for official acts
  • No immunity for acts before office
  • Executive privilege not to reveal confidential communication with advisers but can be outweighed by specifically demonstrated need in criminal prosecution
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21
Q

Immunities –judges

A

Absolute immunity for all judicial acts

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22
Q

Immunities – legislators

A
  • Speech or Debate Clause – protects federal legislators for speech or writings made in connection with their official acts
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23
Q

Intergovernmental immunities

A
  • Federal government is immune from direct state regulation or taxation
  • States are not immune from direct federal regulation
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24
Q

Privileges and immunities of State Citizenship Under Article IV (Comity Clause)

A

Forbids serious discrimination against out-of-state individuals absent substantial justification
- Non-serious – states can discriminate with regard to recreational opportunities

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25
Q

Dormant Commerce Clause

A

In absence of federal regulation, state regulation of interstate commerce is valid so long as

  1. There is no discrimination against out-of-state interests
  2. Regulation does not unduly burden interstate commerce; and
  3. Regulation does not apply to wholly extraterritorial activity

Applies to both businesses and individuals

Exceptions

  • State as market participant (buying/selling)
  • Subsidies
  • Federal approval (i.e., OK even if it discriminates)
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26
Q

State taxation of interstate commerce

A

Non-discriminatory taxation is valid if

  • There is a substantial nexus between taxing state and property or activity to be taxed
  • Fair apportionment of tax L among states
  • No local direct commercial advantage over interstate competitors
  • Tax must be fairly related to services provided by filing state
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27
Q

Ad valorem tax

A

Two kinds of value-based property taxes

  • Commodities – all within borders on specific date (tax day), not goods that are merely in transit
  • Instrumentalities – transportation commitment that moves commodities; need sufficient contact + fair apportionment
28
Q

Preemption

A

Federal law preempts inconsistent or incompatible state law
- Preempting the field – when Congress determines that there should be no state law of any sort in particular field, then any state law in that area is preempted

29
Q

Full Faith and Credit Clause

A

States do not have to follow other states’ laws, but they do have to give full faith and credit to judgments rendered by other states, so long as rendering court had jurisdiction, was on merits, and was final judgment

30
Q

State action

A

Fourteenth Amendment requires state action, which means government action, whether state or local

  • Government cannot be significantly involved in private discrimination
  • Cannot facilitate, profit from, or enforce
  • If anti-discrimination statute, then state action is irrelevant
31
Q

Procedural due process

A

Ask

  1. Is life, liberty, or property being taken?
  2. If so, what process is due?
  • Deprivation – requires intentional taking away
32
Q

Property interest

A

Have in government job or benefit whenever have a legitimate entitlement to continued employment
- Entitlements only when government says so, such as by providing term of discharge only “for cause”

33
Q

Process

A

To decide what kind of process is due, courts balance three factors

  • Individual interest at stake
  • Value of procedure in; protecting that interest; and
  • Government interest in efficiency and cost

Sometimes, hearing must occur before deprivation (welfare benefits, real property, public employees who can only be fired “for cause”), and sometimes can occur after as long as hearing is prompt and fair

34
Q

Substantive due process – standards of review

A
  1. Strict scrutiny
  2. Intermediate scrutiny
  3. Rational basis
35
Q

Strict scrutiny

A

Law is necessary for compelling government interest

  • Least restrictive means
  • Government bears the burden of proof
  • Applies when there is a suspect classification or fundamental right
36
Q

Intermediate scrutiny

A

Law is substantially related to an important government interest
- Applies when there is a classification based on legitimacy or gender

37
Q

Rational basis scrutiny

A

Law is relationally related to legitimate interest

  • Challenger bears the burden of proof
  • Applies to all other cases
38
Q

Fundamental rights (SS)

A
  1. Travel – interstate
    - Reasonable residency requirements for political participation and government benefits OK
  2. Voting and ballot access
    - Can impose requirements for candidates to be listed on ballot, as long as serious candidates can reasonably comply
  3. Privacy
    - Marriage, contraception, sexual intimacy
    - Abortion – until viability; after, state can impose reasonable restrictions that do not impose an undue burden on right to terminate
  4. Parental rights
  5. Family relations – to live together
  6. Obscene material – to read in home but not to purchase, sell, import, or distribute
  7. Refusal of medical treatment – unclear
39
Q

Equal protection – standards of review

A

Same as for substantive DP (i.e., strict scrutiny, intermediate scrutiny, and rational basis)

40
Q

Suspect classifications (SS)

A
  1. Race, ethnicity, or national origin
    - Discriminatory purpose is required (not enough to show disproportionate impact)
    - Affirmative action – valid when it specifically corrects past discrimination by specific department or agency now engaged in AA
  2. Alienage (requirement of U.S. citizenship)
    - Exceptions
    a. Federal government – Congress has plenary power
    b. State and local – non-citizens can be barred from jobs that have particular relevance to role of government
41
Q

Quasi-suspect classifications (IS)

A
  1. Gender classifications are almost always invalid

2. Legitimacy laws are almost always invalid, especially if punitive in nature

42
Q

Non-suspect classifications (RB)

A
  1. Age discrimination in employment is married by statute, but not suspect or quasi-suspect
  2. Wealth not suspect or quasi-suspect, but government has to waive filing for indigent when charing fees would deny a fundamental right
  3. Sexual orientation – Court has hinted that classifications based on SO would only be subject to RB
43
Q

Racial gerrymandering

A

When districts are diluted to scatter minorities with discriminatory purpose, it’s unconstitutional

  • VRA requires RG to ensure minority success by creating majority-minority districts
  • Race may be factor but not predominant or only factor
44
Q

Takings

A

Property shall not be taken for public use without just compensation

  • Public use = anything rationally related to a conceivable public purpose
  • Just compensation = FMV at the time of the taking

Key question is physical occupation (not adverse economic impact)

45
Q

Zoning

A

Not a taking and no compensation required so long as zoning advances legitimate interests and does not extinguish fundamental attribute of ownership

46
Q

Regulatory taking

A

Zoning regulation can be considered a taking when it leaves no economically viable use for the property; consider

  1. Economic impact on the property owner
  2. Extent to which the regulation interferences with the owner’s reasonable, investment-backed expectations regarding use of the property
  3. Character of the regulation
47
Q

Developer permits

A

Development often conditions on concessions by developer, which are valid so long as they can be seen as offsetting adverse impact of development; consider

  1. Essential nexus between legitimate state interests and conditions imposed
  2. Rough proportionality between burden imposed and impact of proposed development
48
Q

Bill of attainder

A

Unconstitutional to have legislative punishment imposed without judicial trial

49
Q

Ex-post facto laws

A

Unconstitutional to expand criminal L retroactively either by creating a new crime that applies retroactively to past conduct or by increasing the penalty for past conduct

50
Q

Contracts Clause

A

Bars states from legislative impairment of existing Ks, unless there is overriding need

51
Q

Establishment Clause

A

Lemon test –in determining whether a law is valid, ask

  1. Does the law have a secular purpose?
  2. Does the law have a primary effect that neither advances nor inhibits religion?
  3. Does the law avoid excessive government entanglement with religion?

Endorsement – violation for government to endorse one law over another and also to endorse religion over non-religion

52
Q

Free exercise

A

Religious belief – protected absolutely

Religious conduct – protected qualifiedly

  • Neutral, generally applicable laws can be enforced despite religious objections
  • Exception –ministers and employment laws
53
Q

Regulation of expressive conduct (SS)

A

Laws regulating expressive content are upheld if

  1. Further important interest;
  2. Interest is unrelated to the suppression of expression; and
  3. Burden on expression is no greater than necessary
54
Q

Vagueness

A

Vague laws are ones that give no clear notice of what is prohibited and thus violate DP

55
Q

Overbreadth

A

Overbroad laws are ones that go too far in regulating speech

- Law burdens substantially more speech than is necessary to protect a compelling interest

56
Q

Regulation of time/place/manner of expression

A

Public forum – three requirements

  1. Must be content-neutral;
  2. Must leave open alternative channels of communication; and
  3. Must be narrowly tailored to serve a significant state interest

Non-public forum (e.g., government office) – any reasonable, viewpoint-neutral regulation of speech will be upheld

Limited public forum (not traditionally a public forum but government opens to all comers) – only time/place/manner restrictions are allowed

57
Q

Obscenity

A
  • Must be erotic
  • Must be patently offensive to the average person in society
  • Must be defined by proper standards for determining what is obscene
  • Must lack serious value
58
Q

Incitement

A

Speech is not protected if it is incitement to immediate violence

59
Q

Fighting words

A

Words likely to prove immediate breach of peace

  • Must be aimed/targeted at someone
  • General vulgarity is NOT enough
60
Q

Defamation

A

False statements of fact damaging to a person’s reputation can be prohibited

  • Public officials/figures – actual malice (knowing or reckless falsity(
  • Private individuals – negligence falsity
61
Q

Commercial speech

A

Most regulations are struck down; as long as advertising is truthful and informational, it must be allowed

62
Q

Government speech

A

First Amendment restrictions basically do not apply to government as speaker; free to express point of view

63
Q

Regulation of media

A

First Amendment shields median from liability for publishing information that was obtained illegally by third party as long as information involves matter of public concern and publisher neither obtained it unlawfully nor knows who did

64
Q

Speech by government employees

A

Government employees cannot be hired or fired based on political party, political philosophy, or any act of expression (e.g., if they’re speaking as a citizen on a matter of public concern)

65
Q

Campaign contributions

A

Can be regulated, provided that limits are not unreasonably low
- Subject to IS – must be “closely drawn” to correspond with sufficiently important interest

66
Q

Campaign expenditures

A

Direct expenditures cannot be regulated

- Coordinated expenditures are disguised contributions and can be regulated as contributions

MBE (8 decks)

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